Editor's Note :

We expect one or more decisions in argued cases on Wednesday at 10 a.m. We will begin live-blogging at approximately 9:45 The Court also has confirmed that the audiotape of Wednesday’s hearing in King v. Burwell will not be released on that day, but on Friday, as is usual.Wednesday's live blog will be available here.

Will Court confess error on immigrants’ rights?

Posted Tue, May 8th, 2012 3:54 pm by Lyle Denniston

Analysis

The Supreme Court is now faced with the rare situation that one of its opinions was based on flawed information, and yet correcting it for the record books might actually undermine the ruling itself. The dilemma: should it just let the error go, or should it do something about it, and, if so, what? But there is also a procedural question that might have to be resolved first: who has the legal right to ask the Court to change an opinion that is wrong?

That is what the Court now confronts in the case of Nken v. Holder, a decision it issued in April 2009. The Justice Department last month told the Court that it had provided faulty information in that case about U.S. immigration policy, but it suggested that the Court need not do anything about it. Now, however, a group of immigrants’ rights lawyers have asked the Court to actually modify the opinion after the fact, so that lower courts do not rely upon the error, with a negative impact on immigrants’ rights.

The Court has formally accepted the Justice Department’s letter expressing regret over the development, as well as the lawyers’ letter filed last Friday asking for a change in the ruling. That letter, though, was not filed for a party in the case — the immigrant Jean Marc Nken or the federal government — but rather on behalf of several immigrants’ rights groups who took part in the Nken case three years ago as amici — not a direct role. The Department has already made clear it sees no need for a modification, and Nken may have no reason to seek it, since in the meantime he has been granted asylum to stay in the U.S.

In the past, when the Court has modified an opinion to correct an error, it apparently has done so most often in response to a rehearing petition by a party actually involved. Most famously, perhaps, the Court did that four years ago in a death penalty case — Kennedy v. Louisiana — when state officials told the Court its ruling had omitted any mention of a key fact. (There, the Court retroactively changed the wording of its opinion, but not the outcome. It did so only after calling for added briefs, and then it split, 5-4, on the significance of the omission.)

Of course, if there are five votes to do it, presumably the Court could modify a flawed opinion after the fact even if no one had asked it to do so. It could be mechanically a bit awkward, if the bound volume of the case is already out — as it apparently is with the ruling in Nken v. Holder.

But, for the immigrants’ rights lawyers, they have told the Court that this is not just a matter of procedural inconvenience or nicety. Various lower courts have relied upon the incorrect statement in the Court’s Nken opinion to deny an immigrant’s plea to remain in the U.S. until that individual has a chance to challenge deportation in court, they said. Moreover, the attorneys’ letter said, there is reason to doubt even the Justice Department’s assurances to the Court that the government now has a policy that it will allow a deported non-citizen to return to the U.S. if he or she wins a challenge to being sent away. “There is still substantial agency discretion” about that outcome, the letter argued.

What’s more, the letter said, the government can give no assurance that, in the future, some other administration may rely on what the Court had said in Nken about the right of return, and thus feel justified in refusing a non-citizen’s re-entry. The government, it added, has made no commitment “to a permanent, legally binding policy.”

And, it added, the assurances that the government now has sought to give the Court leave out a good many individuals who challenge their deportation. The government, the letter noted, has promised a guaranteed return only of an individual who, before deportation, was a lawful permanent resident in the U.S., thus leaving out, say, an applicant — like Nken himself — for asylum. And, even if the government is prepared to let a non-citizen come back, it has said that he or she will have to pay their own way to get back, and that could function as a practical barrier to return, the lawyers told the Court.

“The Court has a paramount interest,” the lawyers said, “in having lower courts and practitioners rely on its opinions. Where an opinion is premised in part on an incorrect factual understanding, the opinion should be modified accordingly.”

Because the Court in Nken had relied upon a supposed policy of a clear chance to return to the U.S. for a successful challenger to deportation, taking out that part of the ruling would seem to indicate that such an individual might, in fact, face “irreparable injury” in not getting a delay in deportation during his or her legal challenge. The denial of such an injury was, it seemed at the time, a central predicate of the Court’s ruling that immigrants facing deportation do not have an automatic right to have their removal postponed. Perhaps, though, the Court might be content to rely on the new assurances from the government, despite the complaint of the immigrants’ counsel.

(To remind what this dispute is about: the Court ruled in Nken that this foreign national from Cameroon, who feared persecution if he was sent home, would not suffer any irreparable harm if he were deported before his legal challenge to deportation were decided. In drawing that conclusion, the opinion relied upon the assurances provided in the Justice Department brief that, “by policy and practice, the government accords aliens who were removed pending judicial review but then prevailed before the courts effective relief by…facilitating the aliens’ return to the United States by parole…if necessary, and according them the status they had at the time of removal.” Later, immigrants’ lawyers questioned whether there was such a policy and, last month, the Department conceded to the Court that there was not, although it told the Court that it now has such a policy, thus making any further action by the Court unnecessary.)

Merits Case Pages and Archives

On Monday the Court issued orders from its February 27 Conference. Two new cases were granted. In case there are opinions, we will be live blogging both Tuesday and Wednesday. This is the second week of the February sitting.

“I think always the humor was a means to an end. And the end is, to help folks who don’t live in this world understand why it matters.” Dahlia Lithwick covers the Supreme Court and writes about law more broadly for Slate.com. In this six-part interview, Ms. Lithwick discusses law school, practicing law, and how […]